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For the first time in more than a decade, a jury in Wake County, North Carolina has sentenced a defendant to death. On March 4, 2019, a capital sentencing jury voted to impose the death penalty upon Seaga Edward Gillard, convicted of the double murder of a pregnant prostitute and her boyfriend, who was assisting her in her business. It was the county’s tenth death-penalty trial since 2008, but juries had rejected a death sentence in each of the previous nine cases. Prosecutors portrayed the Caribbean-born Gillard as a man who preyed on sex workers and told the jury that the case was about securing “maximum justice.”

The sentence bucks a trend in North Carolina, where the use of the death penalty has declined significantly over the last decade. Just 14 death sentences have been imposed in the state from 2009-2018 ­– more than a 90% decline off the peak of 241 death sentences imposed from 1991-2000 – and North Carolina has not carried out an execution since 2006. However, Wake County has continued to be an outlier in the state. The ten Wake County prisoners on North Carolina's death row at the end of 2012 placed the county among the 2% of counties that accounted for 56% of all prisoners on U.S. death rows. Gretchen Engel, executive director of North Carolina’s Center for Death Penalty Litigation criticized the prosecution as wasteful and discriminatory. “Since taking over as Wake district attorney, Lorrin Freeman has pursued the death penalty more than any other prosecutor in North Carolina, costing taxpayers millions of dollars,” Engel said. “That is a poor investment, even in this case.”

Wake County has had four capital trials since Freeman’s election in 2014, with another capital case in jury selection. Eight of the ten prisoners on the county’s death row are Black, one is Latino, and just one is white, and eight of the ten defendants tried capitally since 2008 have been Black. “All it shows is that, if you try ten death penalty cases in a row and exclude from the jury all the people who oppose the death penalty, you can find a jury that will sentence a person to death despite the death penalty's documented unfairness,” Engel said. Although Engel said Gillard committed a serious crime for which he should be punished, she questioned whether his crime was “the worst of the worst.” In March 2016, Wake County jurors sentenced Nathan Holden to life for the double-murder of his ex-wife's parents and attempted murder of his ex-wife. In January 2018, in a crime Freeman had called “everybody’s worst nightmare,” a jury also sentenced Donovan Jevonte Richardson to two life sentences for a home break-in that ended in a double murder. “Wake County jurors have refused to impose the death penalty in other double homicide cases and even in a case in which the defendant was convicted of murdering five people,” Engel said. “All today's verdict shows is what we already knew: That the death penalty is imposed arbitrarily, and disproportionately on black men.”

Whose interests does a lawyer represent, the capital defendant whose life is at stake or the abusive father paying for his defense? Alabama death-row prisoner Nicholas Acklin (pictured) is seeking U.S. Supreme Court review of that issue because he alleges that the lawyer who represented him at trial had a financial conflict of interest that affected the way he represented Acklin in the penalty phase of his capital trial. Nick Acklin’s father, Theodis Acklin, paid for the legal services of Behrouz Rahmati to represent his son in the 1998 death-penalty trial. Two days before trial, as Rahmati belatedly investigated his client’s background, he learned from Nick’s mother, Velma, that Theodis had physically abused her, Nick, and Nick’s brothers, holding them at gunpoint and threatening to kill them. Rahmati asked Theodis to testify about the abuse, believing that the mitigating factor could help persuade the jury to spare Nick’s life. Theodis then gave Rahmati an ultimatum: “You tell Nick if he wants to go down this road, I’m done with him” and “done helping with this case.” Rahmati told the jury nothing about the child abuse, instead presenting testimony from Theodis that Nick had been raised in a “Christian home” with “good values.” The jury then voted 10-2 to recommend a death sentence, and the trial court imposed the death penalty, reasoning that, unlike “most killers” who are the products of abusive childhoods, Nick had chosen to reject the good values with which he had been raised.

Acklin’s petition for Supreme Court review is supported by friend-of-the-court briefs filed by four legal ethics scholars and by former Alabama appeals court judges and presidents of the Alabama State Bar. The brief of the legal ethics professors urges the Court to overturn Acklin’s death sentence, saying that Rahmati “labored under an acute and obvious conflict of interest” that violated ethics norms and rules of professional responsibility applicable in every jurisdiction in the United States. Once Theodis threatened to withdraw funding, the scholars wrote, Rahmati had a clear conflict: “He could serve his client’s interest by making the best argument possible against the imposition of the death penalty, or he could protect his own interests by avoiding antagonizing the paymaster.” At that point, they wrote, “ethics rules unanimously required Rahmati to secure an alternative fee arrangement or obtain Acklin’s informed consent to the conflict, or else seek to end the representation. None of these things occurred.” Instead, without providing Acklin the advice of conflict-free counsel, Rahmati had Nick sign a “waiver” stating that he did not want to raise the abuse issue during his trial.

The former judges and bar presidents—including Alabama Supreme Court Chief Justice Ernest Hornsby, Justice Ralph Cook, and Alabama Court of Criminal Appeals Presiding Judge William Bowen—wrote that “The obligation of loyalty is at its most acute in a death penalty case, where its disregard may cost one’s client his life.” Rahmati’s conduct, they wrote, was an “utter abandonment of his client’s interests” that was exacerbated by counsel’s incompetence. “Any reasonable mitigation investigation would have revealed childhood abuse by Acklin’s father months before trial,” they wrote, when “counsel could have avoided the conflict by not becoming financially beholden to Acklin’s abuser.” Counsel also violated the duty of candor to the court, the judges and bar presidents wrote, “by knowingly presenting false and misleading testimony [that] the trial court expressly relied upon … in sentencing Acklin to death, while counsel stood silent.”

Nick Acklin’s lawyers have asked the U.S. Supreme Court to overturn his death sentence and clarify the rules regarding attorney conflicts of interest. In 2013, an Alabama trial judge held an evidentiary hearing, ultimately rejecting Acklin’s claim. The legal ethics scholars’ brief called that decision a “departure from precedent and prevailing ethics norms.” The former judges urged the Supreme Court to intercede, saying Acklin’s execution under these circumstances would be unjust to him and would also damage “our system of justice itself.”

Death-row exoneree Alfred Dewayne Brown (pictured) was declared “actually innocent” by Harris County District Attorney Kim Ogg on March 1, 2019, making Brown eligible for state compensation for the time he spent wrongfully imprisoned on Texas’ death row. “My obligation as an advocate is not to tell people what they want to hear but to tell them the truth,” Ogg said at a press conference. “Alfred Brown was wrongfully convicted through prosecutorial misconduct.” Brown was freed in 2015, ten years after he was convicted and sentenced to death for the murders of a Houston police officer and a store clerk during a robbery. Until the declaration by Ogg, Brown was ineligible for compensation because Texas law requires that, if a prisoner is exonerated by the dismissal of charges against them, they cannot receive compensation unless the prosecutor says in an affidavit that he or she “believes that the defendant is actually innocent of the crime for which the person was sentenced.”

Brown’s exoneration gained momentum following the discovery of exculpatory phone records in the garage of a Houston police officer in 2013 that corroborated Brown’s claim that he was at his girlfriend’s apartment just minutes before the killings took place and could not possibly have been at murder scene at the time of the killings. Prosecutor Daniel Rizzo claimed that the records had been accidentally misplaced, rather than intentionally withheld. But in 2018, Ogg’s office discovered an email showing that Rizzo knew about the records well before Brown’s trial. A timeline of the case showed that Rizzo’s investigator had sought out the records in an attempt to rebut grand jury testimony by Brown’s girlfriend that he spoke to her by phone from her apartment shortly before the murders. Rizzo then threatened her with prosecution and jailed her until she changed her testimony. “It is impossible to examine the conviction of Alfred Dewayne Brown without confronting prosecutorial misconduct,” wrote special prosecutor John Raley, who conducted more than 1,000 hours of investigation into Brown’s case and produced the report that led to Ogg’s actual innocence declaration. “ADA Daniel Rizzo presided over a Grand Jury that abusively manipulated witnesses to supply evidence for a chosen narrative. He was provided notice of the existence and meaning of exculpatory evidence, failed to produce it to the defense and avoided it during trial. Further investigation of his conduct is warranted.” In his report, Raley concluded, “By clear and convincing evidence, no reasonable juror would fail to have a reasonable doubt about whether Brown is guilty of murder. Therefore his case meets the legal definition of ‘actual innocence.’”

Lawyers who had worked on Brown’s appeals lauded the announcement. Attorney Casey Kaplan said, “The consonant bell of justice rings loudly today and shares what Alfred Brown’s family, supporters and attorneys have known for over a decade — that he is actually innocent. It is a good day.” Brian Stolarz, the lead attorney who secured Brown’s exoneration, said, “We are heartened that he found what we have known all along: Dewayne Brown is actually innocent and was wrongfully convicted and imprisoned. We commend the District Attorney’s commitment to the truth and ensuring that miscarriages of justice like this never happen again in Harris County.” Houston’s police union expressed anger at the decision, holding a separate press conference immediately after Ogg’s. Union president Joe Gamaldi urged the police department to bring the case back to a grand jury.

The United States Supreme Court has reversed a decision of the Alabama state courts that would have permitted the execution of Vernon Madison (pictured), a death-row prisoner whose severe dementia has left him with no memory of the crime for which he was sentenced to death and compromised his understanding of why he was to be executed.The Alabama courts had narrowly construed the Supreme Court’s past rulings that prohibited the execution of prisoners who had become mentally incompetent, limiting those rulings to cases in which a mentally ill prisoner’s lack of understanding of why he was being executed had been caused by psychosis or delusions. In a 5-3 decision on February 27, the Supreme Court ruled that the Eighth Amendment forbids the execution of a prisoner who does not have “a rational understanding of the reason for [his] execution,” irrespective of its cause. Writing for the Court, Justice Elana Kagan said: “What matters is whether a person has the ‘rational understanding’ [the constitution] requires—not whether he has any particular memory or any particular mental illness.”

In 2015 and 2016, Madison suffered multiple severe strokes that caused him brain damage, vascular dementia, and retrograde amnesia. The strokes also left him with slurred speech, legally blind, incontinent, and unable to walk independently. In addition to having no memory of the offense, he can no longer recite the alphabet past the letter G, soils himself because he does not know there is a toilet in his cell, asks that his mother—who is dead—be informed of his strokes, and plans to move to Florida when he is out of jail. Madison’s lawyers argued that he had become incompetent to be executed. At a hearing in state court, he presented evidence that he had no memory of the crime for which he was sentenced to death. The state’s expert agreed that Madison exhibited cognitive decline but said there was no evidence that his impairments were a product of psychosis or delusions. State prosecutors also argued to the state courts that the Supreme Court’s caselaw limited incompetency to be executed to cases involving psychotic mental illness. Emphasizing the absence of evidence of delusions or psychosis, the Alabama courts denied Madison’s competency claim.

The five-justice majority declared that competency determinations are governed by what a prisoner understands, not by what physical or mental healthcondition impairs his understanding. Lack of memory of a crime, Justice Kagan wrote, is not in itself proof of incompetence, although it may be evidence of it. “If Alabama is to execute Madison,” the majority said, “the Eighth Amendment requires, and the state must find, that he’ll understand why.”Expressing no opinion on the ultimate question of Madison’s competency, the Court returned the case to the state courts for a new competency determination using the correct legal standard. In a fiery dissent the majority dismissed as “high dudgeon,”Justice Alito, joined by Justices Thomas and Gorsuch, accused the Court of “mak[ing] a mockery of our rules” and rewarding a defense “trick” by deciding the case based on an argument he claimed was not raised in Madison’s petition for certiorari. Kagan responded that Madison’s petition had “presented two questions — the same two we address here.” Justice Kavanaugh did not participate in the case.

Madison’s lawyer, Bryan Stevenson of the Equal Justice Initiative, said he was “thrilled that today the Court recognized that people with dementia like Vernon Madison, who cannot consistently orient to time and place, are protected from execution and cruel and unusual punishment under the Eighth Amendment.” Stevenson said that “[p]risoners with dementia or severe mental illness are extremely vulnerable,” and called the Court’s decision“enormously important if our system is going to function in a humane and just manner.” Alabama Attorney General Steve Marshall derided Madison’s competency claim as an attempt to “evade” justice and predicted that Alabama’s state courts would again rule that Madison is competent to be executed.

Texas is scheduled to execute Billie Wayne Coble (pictured) on February 28, 2019, despite court findings that two expert witnesses who testified for the prosecution gave “problematic” and “fabricated” testimony at his trial. Coble was sentenced to death in 1990 and resentenced in 2008 after his original sentence was overturned as a result of constitutionally deficient jury instructions. At his resentencing, the issue of future dangerousness presented a serious problem for prosecutors. Under Texas law, a capital jury is required to find that a defendant presents a continuing threat to society before it may sentence him or her to death. But in Coble’s 18 years in prison between first being sentenced to death and his resentencing trial, he “did not have a single disciplinary report,” suggesting he would not pose a future danger if sentenced to life. To persuade the jury of Coble’s future dangerousness, prosecutors retained the services of Dr. Richard Coons, a psychiatrist who testified in numerous capital cases as to the purported future dangerousness of capital defendants. Coons later admitted that his dangerousness predictions were not based on research, but that he made determinations “'his way’ with his own methodology and has never gone back to see whether his prior predictions of future dangerousness have, in fact, been accurate.” Researchers and psychiatric experts have repeatedly found that “future dangerousness” predictions are fundamentally flawed, lack scientific validity, and contribute to arbitrary death sentences.

The prosecution also presented the jury with testimony from prison investigator A.P. Merillat, as an expert on prison conditions. Merillat provided false testimony about the prevalence of prison violence and loopholes in prison rules that he claimed would allow life sentenced prisoners to commit acts of violence. Like Coons, Merillat’s testimony was later revealed to be unreliable and, as a federal appellate court wrote, “the State does not dispute that parts of Merillat’s testimony were fabricated.” The court called both Coons and Merillat “problematic witnesses,” adding “that Coons’ testimony was unreliable and should have been excluded.” The court nonetheless allowed Coble’s death sentence to stand, saying that the false and misleading expert testimony constituted harmless error.

If Coble’s execution proceeds, he will be the third person executed in the U.S. in 2019, and the second in Texas. The 70-year-old Coble would also be the oldest person executed in Texas since the reinstatement of the death penalty. He will be the eleventh person aged seventy or older to be executed in the U.S. during that period (all since 2004), and the seventh this decade.

An estimated 1,500 government officials and representatives of non-governmental organizations from more than 140 countries gathered in Brussels, Belgium on February 26, 2019 for the opening of the Seventh World Congress Against the Death Penalty. The World Congress ­– organized by the Ensemble Contre la Peine de Mort and the World Coalition Against the Death Penalty – is the world’s leading convocation on capital punishment. The four-day meeting formally opened on February 27 with a ceremony in the European Parliament in Brussels featuring remarks by European Union Foreign Policy Chief Federica Mogherini, Belgian Foreign Affairs Minister Didier Reynders, and video messages from United Nations Secretary-General António Guterres and Pope Francis encouraging the delegates to strive for global abolition of the death penalty.

The opening of the Congress followed a high-level death-penalty panel discussion by the United Nations Human Rights Council in Geneva, Switzerland on February 26 focusing on human rights abuses in the application of capital punishment. Michelle Bachelet, the UN High Commissioner for Human Rights, introduced the panel by reiterating the international body’s long-held beliefs on capital punishment. “The UN opposes the use of the death penalty, everywhere, and in all circumstances,” Bachelet said. “Today, I am pleased to say, there is a clear international trend towards abolition.” The topic of human rights, discrimination, and the death penalty, she said “is particularly well chosen, because nowhere is discrimination more evident than when one looks at the people on death row – the people who society has decided are beyond rehabilitation and should be killed. … [D]eath rows are disproportionately populated by the poor and economically vulnerable; members of ethnic minorities; people with psycho-social or intellectual disabilities; foreign nationals; indigenous persons; and other marginalised members of society.” Speaking on behalf of the eight countries that sponsored the resolution calling for the panel debate, Minister Reynders expressed special concern about the use of the death penalty as punishment for peaceful expression of religious or political beliefs, blasphemy, same-sex relationships, and consensual sexual relations outside of marriage. “The application of the death penalty in these cases,” he said, “takes on a particularly discriminatory nature.”

In his video message to the Congress, Secretary-General Guterres said “[t]he death penalty has no place in the 21st century.” He called the record number of nations that sponsored last December’s UN General Assembly resolution for a global moratorium on the use of the death penalty evidence of progress, but said it was still “far from enough.” The death penalty, he said “is still employed despite its cruelty, despite the myth that it deters crime and despite the knowledge that innocent people have been – and may continue to be -- put to death.” The video message by Pope Francis (pictured) encouraged activism against the death penalty as a “courageous affirmation of the principle of the dignity of the human person.” The Pope called capital punishment a “serious violation of the right to life. … While it is true that human societies and communities have to often face very serious crimes that threaten the common good and the safety of people, it is not less true that today there are other means to atone for the damage caused,” Francis said. The Pope stressed that “the dignity of the person is not lost even if he has committed the worst of the crimes. … It’s in our hands to recognize the dignity of each person and to work so that more lives are not eliminated.”

Two former California death-row prisoners who had spent a combined 70 years in prison are now free men, after federal courts overturned their convictions and local prosecutors agreed to plea deals on non-capital charges. James Hardy (pictured, left) was freed on February 14, 2019 after pleading guilty to two counts of first-degree murder in exchange for a suspended sentence and release on probation. Freddie Lee Taylor (pictured, right) was released on February 20 after pleading guilty to manslaughter and a sentence of time served. Both men have claims of innocence, but their plea deals make them ineligible for DPIC’s Innocence List. Each spent more than 30 years on death row.

James Hardy was convicted and sentenced to death in Los Angeles in 1984 for the murder of Nancy Morgan and her son, Mitchell Morgan. Hardy was tried along with two co-defendants, Mark Reilly and Clifford Morgan, the husband and father of the victims. Clifford was convicted of hiring Reilly and Hardy to kill his family so he could collect insurance money. Prosecutors argued that Hardy was the actual killer and Reilly the middleman in the conspiracy. On appeal, Hardy argued that his trial attorney had been ineffective because he had failed to investigate or present evidence that the prosecution’s key witness was actually the killer. The California Supreme Court overturned Hardy’s death sentence, and a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit later overturned his conviction, writing, “Hardy’s attorney failed him, and the State of California failed Hardy by putting a man on the stand that it should have known committed the crime.” The court said, “there is a substantial likelihood that the jury would not have convicted Hardy had [his trial lawyer] performed effectively.” Rather than retry Hardy, the Los Angeles District Attorney’s office agreed to a plea deal.

Freddie Lee Taylor was convicted and sentenced to death in Contra Costa County in 1986. Taylor had experienced severe trauma and abuse as a child, started using drugs by the age of 10, and was housed from age 13 to 17 in a juvenile detention center that was described in court records as a “gruesome, dehumanizing and frightening world where rape, beatings and fear were constant.” He was arrested in 1984 during a “family dispute” and was sent to a mental institution, where he attempted suicide. Despite doctors’ recommendations that he be placed in a mental hospital because he was a danger to himself or others, he was released by hospital staff. He burglarized the home of 84-year-old Carmen Vasquez, leaving fingerprints in her home. When she was murdered days later, he was identified as a suspect because his fingerprints were at the crime scene. Taylor’s long history of mental illness was ignored at his trial, where his lawyer never requested and the court did not independently order a competency evaluation. His appeal lawyers argued that his conviction was invalid because he was not competent to stand trial. A federal judge reversed Taylor’s conviction in 2016 and the Ninth Circuit upheld that decision in 2018, saying there was insufficient evidence to accurately assess Taylor’s mental health at the time of the crime and his trial. The federal court gave Contra Costa County prosecutors 60 days to decide whether to retry him, but they instead agreed to the plea deal. “Had he not had the benefit of zealous appellate lawyers dedicated to his cause, Freddie Lee Taylor may well have been executed,” Chief Public Defender Robin Lipetzky said. “His is but one case. Others like him who have meritorious claims may not be so fortunate. There are over 700 more people on death row — many waiting for an attorney to be appointed to their case and others still waiting for their cases to be finally resolved by the courts.”

Responding to the Georgia state and federal courts’ refusal to reverse a death sentence imposed on an African-American defendant by a jury tainted by racism, an ideologically diverse range of voices have called on the U.S. Supreme Court to intervene. Georgia death-row prisoner Keith Tharpe (pictured) was sentenced to death by a juror who later said, “there are two types of black people: 1. Black folks and 2. N***rs,” and wondered “if black people even have souls.” Tharpe, the juror wrote in a signed affidavit, “wasn’t in the ‘good’ black folks category in my book, [and] should get the electric chair for what he did.” In September 2017, the Supreme Court stayed Tharpe’s execution just three hours before it was set to begin, and subsequently ordered the U.S. Court of Appeals for the Eleventh Circuit to reconsider the case. In April 2018, the circuit again denied Tharpe’s appeal. Now, as he seeks a new hearing before the Supreme Court, his case has garnered support from the NAACP Legal Defense Fund, a Harvard Law Professor, three Catholic bishops, and a prominent Georgia Republican. They all raise concerns that Tharpe’s execution would undermine confidence in the justice system.

In a New York Times op-ed, Harvard Law Professor Russell Kennedy wrote that Tharpe’s case carries a “stench of prejudice” and that his execution would be a miscarriage of justice. “[U]nique historical, constitutional and institutional concerns” should motivate the Court “to rectify the racism that remains all too evident in our administration of criminal justice,” he said. Sam Spital, Director of Litigation at the NAACP Legal Defense & Educational Fund, Inc., wrote in the National Law Journal that “overt racial bias in sentencing harms not only the defendant sentenced to die but undermines public confidence in the justice system.” He criticized the lower courts for inventing “inherently inconsistent … procedural roadblocks” as a way to uphold Tharpe’s death sentence. Initially, the Eleventh Circuit denied Tharpe’s race discrimination claim saying he should have raised it sooner, Spital said. But even after the Supreme Court directed the court to reconsider, the circuit refused to address the issue claiming that the case allowing him to present evidence of the juror’s racist statements had not been decided until long after Tharpe’s conviction and death sentence. Spital disagreed with the decision, arguing that “[w]hen a person has presented compelling evidence that he was sentenced to death because of his race, no judge-made procedural obstacles should preclude review of his claim on the merits.”

Three Catholic bishops called for the Supreme Court to vacate Tharpe’s death sentence “for our collective dignity.” In a joint op-ed for The Atlantic, Archbishop Wilton D. Gregory of Atlanta, Georgia, Bishop Frank J. Dewane of Venice, Florida, and Bishop Shelton J. Fabre of Houma-Thibodaux, Louisiana wrote that “part of our work as religious leaders is to challenge racism by reminding the public that we are all brothers and sisters, equally made in the image of God.” Citing policy statements committing the church to the eradication of racism and declaring the death penalty inadmissible, the bishops wrote: “The U.S. Supreme Court must intervene … to ensure that fairness is protected and justice is defended—before it’s too late.” Additionally, David J. Burge, the former Chairman of the Georgia 5th Congressional District Republican Party, wrote in Newsweek, “As a conservative, I strongly believe that the laws that govern us must be followed and applied in a fair and consistent manner to all citizens. As such, it is obvious to me that jurors who hold racially biased beliefs can never be allowed to judge a case in which their views might influence their verdict.” Tharpe’s case, he wrote, “powerfully remind[s] me that the system is not foolproof. When we know there is error, it is incumbent on the courts to intervene and make it right. … The integrity of the entire process is predicated on the assumption that all jurors evaluate the case through an unbiased lens.”

Two amicus curiae briefs filed in the Racial Justice Act appeal of North Carolina death-row prisoner Rayford Burke (pictured) are asking the North Carolina Supreme Court to redress systemic problems in North Carolina’s administration of its death penalty. One brief, filed by the New York-based NAACP Legal Defense and Educational Fund (LDF), urges the court to provide Burke “the opportunity to prove that racial bias impermissibly influenced jury selection and infected his death sentence.” A second brief, filed by the Promise of Justice Initiative and 12 former judges, prosecutors, and law enforcement officials from North Carolina, asks the court to declare the state’s death penalty unconstitutional.

Burke was convicted and sentenced to death for the 1992 murder of a man who he said had testified falsely against him in a prior case. He had sought review of his death sentence under North Carolina’s Racial Justice Act (RJA), enacted in 2009, which permitted prisoners to challenge their death sentences based on statistical evidence of racial discrimination. However, before a hearing was held on Burke’s Racial Justice Act claim, Cumberland County Superior Court Judge Gregory Weeks conducted an extensive evidentiary hearing in the case of Marcus Robinson and granted Robinson relief. In a 167-page opinion, Judge Weeks reviewed an “exhaustive study” of North Carolina prosecutors’ strikes and acceptances of more than 7,400 jurors in 173 North Carolina capital murder trials between 1990 and 2010 and found “a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina.” Weeks wrote that prosecutors struck black jurors at more than twice the rate of all other jurors, with “remarkable consistency” in strike rates in every county and across the entire period of time studied. Race, he said, “was a materially, practically and statistically significant factor in decisions to exercise peremptory challenges during jury selection by prosecutors when seeking to impose death sentences in capital cases” and he concluded that the strikes were intentionally undertaken on the basis of race.

The legislature responded by repealing the RJAin 2013. Although four death-row prisoners had received sentence reductions prior to repeal, Burke’s claim had not yet been heard in court and his trial court ruled that the repeal had extinguished any right he had to a hearing. The state courts also overturned the grants of relief to the four prisoners. In March 2018, the state supreme court announcedthat it would hear RJA appeals from those prisoners, as well as from Burke and another prisoner whose RJA claim had also been filed but not heard.

The LDF brief sets forth evidence that prosecutors discriminated in Burke’s case, including that prosecutors struck all African-American prospective jurors, resulting in an all-white jury, and called Burke “a big black bull” during the trial. It also catalogues what it describes as “a long and tragic history of entrenched racial discrimination in the administration of North Carolina’s death penalty.” In a statement accompanying the filing of the brief, LDF Senior Deputy Director of Litigation Jin Hee Lee said: “Allowing racial bias in Mr. Burke’s case to go unchallenged would be tantamount to condoning racial bias in the administration of justice. The Court must affirm its unwavering commitment to fundamental fairness and racial equality by affording Mr. Burke the opportunity to prove that discrimination tainted his death sentence,” said.

The Promise of Justice Initiative brief, joined by the former judges, prosecutors, and law enforcement personnel, takes an even broader view, calling on the court to strike down North Carolina’s death penalty as unconstitutional. “The time has come to consider whether the system of capital punishment that currently operates in North Carolina violates the evolving standards of decency,” the brief states. Citing evidence that, in North Carolina, no one has been executed since 2006 and the state has averaged fewer than one new death sentence per year over the last seven years, the brief argues that “it is now beyond dispute that use of the death penalty is unusual.” It also points to recent court decisions striking down the death penalty in other states, including Delawarein 2016 and Washingtonin 2018. “Courts have recognized that the penalty is corrupted by arbitrariness, plagued by error and discrimination, and unsupported by evidence that it deters,” it says.

Ohio Governor Mike DeWine (pictured) has halted all executions in the state until its Department of Rehabilitation and Correction is able to develop a new execution protocol that gains approval from the courts. Responding to the findings of a federal court that likened Ohio’s three-drug lethal-injection protocol to a combination of waterboarding and chemical fire, DeWine said “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment.” DeWine announced his decision at an Associated Press forum in Columbus on February 19. The Republican governor did not set a date on which he expected executions to resume, saying “[a]s long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio.”

On January 14, federal magistrate Judge Michael Merz issued an opinion saying that executions under Ohio’s current drug protocol “will almost certainly subject [prisoners] to severe pain and needless suffering.” Mertz noted that 24 of 28 available autopsies from executions involving the sedative midazolam – the first drug in Ohio’s protocol – showed evidence of pulmonary edema, a build-up of fluid in the lungs that was “painful, both physically and emotionally, inducing a sense of drowning and the attendant panic and terror, much as would occur with the torture tactic known as waterboarding.” Mertz found that midazolam lacked the pharmacological properties necessary to keep the prisoner unconscious during the administration of the paralytic second drug, rocuronium bromide, and the heart-stopping third drug, potassium chloride. As a result, he said, the prisoner would experience the sensation of “fire … being poured” through his veins when those drugs were administered. The court’s ruling led DeWine to issue a six-month reprieve to death-row prisoner Warren Keith Henness, who had been scheduled to be executed February 13.

DeWine sponsored Ohio’s capital punishment law as a state senator in 1981 and later represented the state in death-penalty cases as its Attorney General. The governor, who is Catholic and identifies himself as pro-life, has not said how those beliefs affect his stance on the death penalty. When reporters at the forum asked about his personal views on capital punishment, DeWine equivocated. “It is the law of the state of Ohio,” he said. “And I’ll let it go [not comment further] at this point. We are seeing clearly some challenges that you have all reported on in regard to carrying out the death penalty.” Ohio has six more executions scheduled in 2019 and 23 scheduled through 2023.

Kevin Werner of Ohioans to Stop Executions praised the governor’s decision, but cautioned that broad problems identified in a 2014 Task Force Report on the state’s death penalty still need to be addressed. The people set to be executed, he said, are among the most vulnerable in the criminal legal system: “They are people who are poor, who killed white victims, and who have some underlying substance abuse or abuse as children or have a mental illness – I mean, that’s who we’re talking about here."

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Latest News

NEWS (3/13): Governor Gavin Newsom has imposed a moratorium on executions in California, granting reprieves to the 737 prisoners on the state's death row. He has also withdrawn the state's execution protocol and closed the death chamber in San Quentin prison. You can view Governor Newsom's news conference announcing the moratorium here.

TENNESSEE: The Tennessee House voted 73-22 on March 18 to pass a bill that would remove the appeal to the court of criminal appeals in death-penalty cases. HB 0258 would allow for direct appeal to the Tennessee Supreme Court, eliminating one level of appellate review in death-penalty cases.

ARKANSAS: The Arkansas Senate approved a sweeping execution secrecy bill on March 13 by a vote of 25-9. SB 464 would conceal from the public documents and information relating to the state's purchase of execution drugs and the identity of the drug supplier and make disclosure of such information a felony.

NEBRASKA: The Judiciary Committee of the Nebraska unicameral legislature voted 5-2 on March 15 to advance to the full Senate LB44, a bill that would repeal the state's death penalty. The legislature repealed the death penalty in 2015 and overrode Governor Rickett's veto of the bill. However, enactment of the bill was suspended pending the outcome of a voter referendum in 2016 that blocked the bill from going into effect. See Recent Legislative Activity.

TENNESSEE: The House Judiciary Committee's subcommittee on Criminal Justice voted on March 13 to send HB1455 to the full committee for a hearing on whether defendants who suffered from severe mental illness at the time of the offense should be exempted from the death penalty.

NEWS (3/4): The U.S. Court of Appeals for the Ninth Circuit has overturned the death sentence of Arizona death-row prisoner Christopher Spreitz. A divided panel of the court ruled 2-1 that the Arizona courts unconstitutionally required Speitz to prove that his history of substance abuse had a causal link to the offense before it could be given any weight as mitigating evidence to potentially spare his life.

NEWS (3/4): The U.S. Supreme Court has denied certiorari in the case of Searcey v. Dean, declining to review the $28 million judgment a federal jury entered against Gage County, Nebraska as a result of the wrongful prosecution and conviction of “the Beatrice Six” for a rape and murder they did not commit. Several of the wrongfully accused falsely confessed or testified falsely against others after having been threatened with the death penalty.NEWS (3/1): The Harris County District Attorney's office has accepted the recommendation of a Special Prosecutor's report that death-row exoneree Alfred Dewayne Brown be declared "actually innocent." The declaration paves the way for Brown to collect compensation from the state of Texas for his wrongful conviction and death sentence.

NEWS (2/28): Texas has executed Billie Wayne Coble. It was the third execution in the U.S. in 2019 and the second in Texas. Coble, a Vietnam veteran with PTSD, was the 560th prisoner executed in Texas since executions resumed in the 1970s, nearly 5 times more than any other state. See Execution List 2019 and Execution Database.

Texas authorities removed Coble's son Gordon Wayne Coble and grandson Dalton Wayne Coble from the execution witness room following an outburst after the lethal injection drugs were administered and charged them with disorderly conduct and resisting arrest.

NEWS (2/28): The California Supreme Court has upheld convictions and death sentences imposed on Oswaldo Amezcua and Joseph Flores by a Los Angeles County jury in 2005. Neither defendant presented any mitigating evidence in the penalty phase of their joint trial.

NEWS (2/28): A three-judge panel sentenced Arron Lawson to death for a quadruple murder in Lawrence County, Ohio. It was the second new death sentence of 2019, both imposed after defendants were permitted to waive their right to jury sentencing. In January, a Jackson County, Florida judge sentenced Rocky Beamon to death after Beamon waived his right to a jury sentencing and asked the court for a death sentence.

NEWS (2/22): California Governor Gavin Newsome has ordered that more extensive DNA testing be performed in the case of death-row prisoner Kevin Cooper. Cooper has long maintained his innocence of the 1983 quadruple murder for which he was sentenced to death.

NEWS (2/19): The U.S. Supreme Court has denied certiorari, declining to review an appeal filed by Arkansas Judge Wendell Griffen challenging the Arkansas Supreme Court's decision barring him from handling any capital cases as a result of his participation in an anti-death penalty rally in which he strapped himself to a gurney to protest executions.

Howard University law professor Robin Konrad, former DPIC Director of Research and Special Projects, joins Executive Director Robert Dunham and current Director of Research and Special Projects Ngozi Ndulue to discuss DPIC's November 2018 report, Behind the Curtain: Secrecy and the Death Penalty in the United States. Konrad, the lead author of the report, provides an overview of the expansion of state secrecy in the use of the death penalty, and the three discuss the policy implications of the lack of accountability and transparency in the administration of capital punishment.

DPIC'S YEAR END REPORT: The Death Penalty Information Center's 2018 analysis of developments in the U.S. death penalty,The Death Penalty in 2018: Year End Report reports that death-penalty usage remained near generational lows, with executions below 30 and new death sentences below 50 for the fourth straight year. The size of death row dropped nationwide for the 18th year in a row. Read the report here. Listen to our Discussions With DPIC podcast about the report here.

LATEST EXONERATION: Former death-row prisoner Clemente Aguirre-Jarquin was exonerated in Florida on November 5, 2018, as Seminole County prosecutors dropped all charges against him. He is the 164th person wrongfully convicted and sentenced to death to have been exonerated in the U.S. since 1973, and the 28th exonerated in Florida. See Innocence.

DPIC Executive Director Robert Dunham testified on February 19 before the New Hampshire House Criminal Justice and Public Safety Committee on the bill to replace New Hampshire's death penalty with life without possibility of parole. That testimony, which addressed the question of whether the death penalty has made the public and New Hampshire police safer, has now been uploaded to YouTube. You can watch it here: https://www.youtube.com/watch?v=NWgyllPbXN0.

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DPIC Podcast Series: We have begun a new set of podcasts on the death penalty in each state, each with interesting historical facts. The following are now available: Michigan, Wisconsin, Maine, Minnesota, North Dakota, Alaska, Hawaii, Iowa, Vermont, Massachusetts, District of Columbia, Rhode Island, and New Jersey. Check out our podcasts now! Also listen to DPIC's podcasts on death penalty issues.